TaxTMI 
TaxTMI 
2014 (12) TMI 1271
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....claim any pensionary benefits. The correctness of that view is under challenge in this appeal filed by the widow of the deceased employee who passed away during the pendency of the proceedings before the High Court. Since the answer to the question so much depends upon the circumstances in which the letter referred to above was written by the deceased-employee, we may as well reproduce the same in extenso: "Patna Date: 09.10.07 To The Zonal Manager, Central Bank of India, Zonal Office, Patna. Though : Proper Channel Sub: Resignation from the service of bank Respected Sir, With due respect I have to submit the following reasons which has compelled me to resign from my service. In the year 2002 I was attacked with severe carnio cervical spondylisis problem and I was referred to Dr. P.S. Ramani Lilavati Hospital, Mumbai where I had to go under surgical treatment. Within a month time I suffered acute prostate problem also for which I had to go for operation at Sheela Urology Centre Patna by Dr. S.S. Ambasta. But I could not get rid of my suffering of and on paid and giddiness goes acute. As ....
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....lieved him apparently because the expression used in the letter was resignation which obviously meant that no financial burden would fall upon the bank in terms of retrial benefits otherwise payable to an employee who has served for the requisite number of years entitling him to retirement. 5. Grant or refusal of pension to the employees of the respondent-bank is regulated by Central Bank of India (Employees) Pension Regulation, 1995. Chapter IV of the said Regulations deals with qualifying service. Regulation 14 of the Regulations appearing in that chapter postulates that an employee who has rendered a minimum of ten years of service in the bank on the date of his retirement or on the date on which he is deemed to have retired shall qualify for pension. Regulation 22 deals with forfeiture of service and, inter alia, stipulates that resignation, dismissal, removal or termination of an employee from the service of the Bank shall entail forfeiture of his entire past service. Chapter V of the Regulations deals with Classes of Pension. While Regulation 28 envisages superannuation pension, Regulation 29 deals with pension on voluntary retirement and read as under: "29. Pensi....
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.... such authority: Provided that the request for such withdrawal shall be made before the intended date of his retirement. (5) The qualifying service of an employee retiring voluntarily under this regulation shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty-three years and it does not take him beyond the date of superannuation. (6) The pension of an employee retiring under this regulation shall be based on the average emoluments as defined under clause (d) of regulation (2) of these regulations and the increase not exceeding five years in his qualifying service, shall not entitle him to any notional fixation of pay for the purpose of calculating his pension." 6. From a reading of the above, it is evident that an employee who has completed twenty years of qualifying service is entitled to seek voluntary retirement from service of the bank provided he gives a notice of not less than three months in writing to the appointing authority in that regard. What is important is that in terms of proviso to Regulation 29(2), if the appointi....
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....ployee who had resigned from service after giving an advance notice to the appointing authority. So also in Reserve Bank of India and Anr. v. CECIL Dennis Solomon and Anr., 2004(1) S.C.T. 326 : (2004) 9 SCC 461 this Court was considering the provisions of the Reserve Bank of India Pension Regulations, 1990 while it made a distinction between what is resignation on the one hand and voluntary retirement on the other. At the same time a long line of decisions have recognised that pension is neither a bounty nor a matter of grace but is a payment for past services rendered by the employee. Decisions of this Court in D.S. Nakara and Ors. v. Union of India, (1983) 1 SCC 305, and Chairman Railway Board and Ors. v. C.R. Rangadhamaiah and Ors., 1997(3) S.C.T 722 : (1997) 6 SCC 623, are clear pronouncements on the subject. Reference may also be made to Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd. and Ors., (1984) 3 SCC 369 where this Court observed: "18. For centuries the courts swung in favour of the view that pension is either a bounty or a gratuitous payment for loyal service rendered depending upon the sweet will or grace of the employer not claimable as a right and the....
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....t the intention of the legislature was to grant protection only to persons whose possession had a lawful origin in the sense that they had either bona fide believed the lands to be Government's land of which they could later seek assignment or had taken the lands on lease from persons whom they bona fide believed to be competent to grant such leases or had come into possession with the intention of attorning to the lawful owners or on the basis of arrangements like varam etc. which were only in the nature of licences and fell short of a leasehold right. It was not within the contemplation of the legislature to confer the benefit of protection on persons who had wilfully trespassed upon lands belonging to others and whose occupation was unlawful in its origin. The expression "in occupation" occurring in Section 7-D must be construed as meaning "in lawful occupation". 9. Again in Vatan Mal v. Kailash Nath, 1989(1) R.C.R (Rent) 500 : (1989) 3 SCC 79, this Court observed: "9. The intention of the legislature to confer the benefit of Section 13-A to all tenants, provided actual eviction had not taken place, could further be seen by the terms of sub-clause (c). Under sub-....
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....ld, therefore, be construed keeping in view the object underlying the said provision." (emphasis supplied) 12. Let us now examine the true purport of the letter submitted by the deceased-employee in the light of the above principles. Two distinct aspects stand out from the record. The first is that the deceased-employee had served for more than 34 years in the bank and was, therefore, entitled to seek voluntary retirement if he chose to leave prematurely. The second aspect which is equally important is that the employee had chosen to leave the employment not because of any disciplinary or other action proposed against him or any order of transfer or posting with which he was unhappy or because any proceedings had been started that could have visited him with any civil consequence if he had continued in service, but because of his physical inability to continue in service on account of diseases with which he was stricken. This is evident from the fact that not only in the letter, but also in documents enclosed therewith the employee has laid great stress on the reasons for leaving the service prematurely. No such reasons were necessary if the employee actually intended t....
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....ntended to do by his letter dated 8th October, 2007 was to seek voluntary retirement and not resignation from his employment. We say so in the light of several attendant circumstances. In the first place, the employee at the time of his writing the letter dated 8th October, 2007 was left with just about one and a half years of service. It will be too imprudent for anyone to suggest that a bank employee who has worked with such commitment as earned him the appreciation of the management would have so thoughtlessly given up the retiral benefits in the form of pension etc. which he had earned on account of his continued dedication to his job. If pension is not a bounty, but a right which the employee acquires on account of long years of sincere and good work done by him, the Court will be slow in presuming that the employee intended to waive or abandon such a valuable right without any cogent reason. At any rate there ought to be some compelling circumstance to suggest that the employee had consciously given up the right and benefit, which he had acquired so assiduously. Far from the material on record suggesting any such conscious surrender abandonment or waiver of the right to retir....
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....ndra Sarkar v. Tata Iron and Steel Company Ltd. and Ors., (1984) 3 SCC 369, a permanent uncovenanted employee of the company had served for 29 years whereafter he tendered his resignation which the employer accepted unconditionally. The Company's Retiring Gratuity Rules did not provide for payment of gratuity to employees who resigned from service. This Court while reversing the view taken by the High Court held that termination of service by resignation was tantamount to retirement by resignation entitling the employee to retiral benefits. The following passage is apposite in this regard: "7. The contention of the respondent is that the plaintiff did not retire from service but he left the service of the Company by resigning his post. This aspect to some extent agitated the mind of the High Court. It may be dealt with first. It is not only in dispute, but is in fact conceded that the plaintiff did render continuous service from December 31, 1929 till August 31, 1959. On exact computation, the plaintiff rendered service for 29 years and 8 months. Rule 6(a) which prescribed the eligibility criterion for payment of gratuity provides that every permanent unconvenanted emp....
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....he terminal benefits on his voluntary resigning, then a specific provision similar to Regulation 16(b) would have been incorporated in the Regulations but this has not been done. Once an officer has to his credit the minimum period of qualifying service, he earns a right to get pension and as the Regulations stand, that right can be taken away only if an order is passed under Regulation 3 or 16. The cases of voluntary resignations of officers, who have to their credit the minimum period of qualifying service are not covered by these two Regulations and, therefore, such officers, who voluntarily resign, cannot be automatically deprived of the terminal benefits." 18. In Sheel Kumar Jain v. New India Assurance Company Limited and Ors., 2011(4) S.C.T. 34 : (2011) 12 SCC 197, the facts were somewhat similar to the case at hand. The appellant in that case was an employee of an Insurance Company governed by a Pension Scheme which provided, as in the case at hand, forfeiture of the entire service of an employee should he resign from his employment. The appellant submitted a letter of resignation which resulted in denial of his service benefits under the scheme aforementioned. This Court....